Mr. James Mattson, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.

Ms. Cammi Koneczny, Human Resources Analyst, City of
Superior, appearing on behalf of the City.

ARBITRATION AWARD

Superior City Employees' Union Local #235, AFSCME, AFL-CIO, hereinafter
referred to as the
Union, and City of Superior, hereinafter referred to as the City or Employer, are parties to a
collective
bargaining agreement which provides for the final and binding arbitration of grievances. The
parties jointly
requested the Wisconsin Employment Relations Commission to appoint Coleen A. Burns, a
member of its
staff, to act as arbitrator to hear and decide the instant grievance. Hearing was held in
Superior, Wisconsin,
on June 23, 2005. The hearing was not transcribed and the parties submitted post-hearing
briefs, the last
of which was filed on September 2, 2005.

ISSUES

The parties were unable to agree on a statement of the issues.

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The Union frames the issues as follows:

Did the Employer violate the terms of the Collective Bargaining Agreement by
not
placing the Grievant on a ninety (90) working day probation period due to her bumping
into a different classification and consequently not paying her at her previous salary during
the ninety working day probationary period?

And if so; the appropriate remedy is for Management to confer with the
Grievant
and her immediate supervisor to determine if the Grievant has successfully completed the
ninety (90) working day probationary period and to pay her at her prior rate of pay for this
probationary period.

The City frames the issues as follows:

Did the City violate the AFSCME Local #235 Union Agreement when it did
not
require Krista Anderson to serve a probationary period in her Staff Assistant position in
the Planning Department?

The undersigned frames the issue as follows:

1. Did the City violate the parties' collective bargaining agreement by not
requiring Krista Anderson to serve a ninety (90) working day probationary period when
she bumped from her Community Development Technician position into a Staff Assistant
position and by not paying Krista Anderson at her Community Development Technician
rate of pay during any required (90) working day probationary period?

2. If so, what is the appropriate remedy?

RELVANT CONTRACT
PROVISIONS

ARTICLE 4

PROBATIONARY PERIOD

. . .

4.04 Probationary Period After
Completion of the Initial Probationary Period: Employees
appointed to a position after they have served their initial probationary period shall serve
a probationary period of ninety (90) full days of actual work which shall be a trial period
to demonstrate their ability to perform the work.

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4.05Salary Placement:

a) Promotions: During said period, they shall be paid
at five percent (5%) less
than the rate in the salary step which is closest to the rate of their former position,
provided however, that employees shall not receive less than their rate in their
former position. Following the successful completion of probationary period, the
employee shall be paid at the rate in the salary step which is closest but higher than
the rate of their former position.

b) Transfers: If the employee moves to a position in
the same job class, during
said period, they shall be paid at the same rate prior to transfer. Following the
successful completion of probationary period, the employee shall advance to any
higher steps in the salary range according to their time served in the job class.

c) Reduction in Salary: If the employee moves to a
position where the top step
of the salary range of the new position is less than the top step of the salary range
of the current position, during said period, they shall be paid at the same rate prior
to the move to the new position. Following the successful completion of the
probationary period, the employee shall move to the step closest to the salary step
of the prior position. If this step is not the top step in the salary range, the
employee shall advance to any higher steps in the salary range according to their
time served in the new job class.

. . .

ARTICLE 9

LAYOFFS AND REHIRING

9.01 In the event the City of Superior
considers scheduling a layoff, the matter shall first
be submitted to the Union Committee so that the parties can agree on an orderly,
acceptable process. Strict application of unit-wide seniority will prevail, providing
that the remaining are qualified to perform the available work or unless exceptional
circumstances occur which would prohibit the parties from following the unit-wide
list. The following procedures shall be utilized:

. . .

D) The salary for the employee
exercising bumping rights will be that of the same
salary step of the salary range for the job class bumped to as the step attained in
the job class prior to layoff.

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E) Employees who move to a position which
is not the same job class they hold
or not a lower level job class in the series as referenced in Appendix A of this
working agreement of their current position where they have completed a
probationary period will serve a 90 working day probationary period.

. . .

APPENDIX B:

CLASSIFICATION BY SERIES

. . .

Secretarial Series** Assessment/Appraisal
Series

Staff Assistant Assessment/Technician**

Administrative Assistant (Confidential) Property Appraiser

Stenography Clerical Series** . . .

Steno Clerk I

Steno Clerk II

City Clerk Assistant

Election Coordinator

Deputy City Clerk

Accounting Series** Building
Permit/Inspection Series

Account Clerk Building Permit Technician**

Accounting Technician Code Compliance Officer

Senior Accounting Technician . . .

Police Records Clerk Series**

Police Records Clerk

Senior Police Records Clerk

** In the event of a layoff incumbents of these classes bumping to the General
Clerical
Series are not required to serve a new probationary period.

BACKGROUND

Krista Anderson, hereafter Grievant, has been employed by City since March of
1994. Until
March 29, 1995, the Grievant was a Part-time Clerk in the Finance Department. From May
1, 1995
through August 23, 1995, the Grievant was a Clerk/Steno in the Engineering Department.
The Grievant
then assumed the position of Clerk/Steno in the City Clerk's Office

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and remained in that position until early 1997, when her position was reclassified to
Election Coordinator.

Effective December 31, 2003, the City eliminated the Union's bargaining unit
position of Election
Coordinator held by the Grievant. The Grievant bumped into the Union's bargaining unit
position of
Community Development Technician and held this position until it was eliminated by the
City on December
31, 2004. The Grievant bumped into the Union's bargaining unit position of Staff Assistant,
effective
January 1, 2005.

At the time that her position of Community Development Technician was eliminated,
the Grievant
had an hourly wage rate of $16.87 per hour. Effective January 1, 2005, the hourly wage
rate of the
Community Development Technician was $17.29. When the Grievant bumped into the Staff
Assistant
position, her hourly rate of pay was $14.84.

On or about January 14, 2005, a grievance was filed in which the Grievant asserted
that the City
violated Articles 9.01(E) and 4.04(C) of the parties' collective bargaining agreement by not
placing her on
a ninety-day probationary period, beginning January 3, 2005, and by not paying her at her
Community
Development Technician rate of pay for the ninety-day probationary period.

. . . Article 9.01(E) defines when a 90 working-day
probationary period will be served.
Since you have completed the probationary period for a Community Development
Technician, a higher level technical clerical position to a Staff Assistant, you are not
required to serve a probationary period for the Staff Assistant. Further, Article 9.01(D)
provides "the salary for the employee exercising bumping rights will be that of the same
salary step of the salary range for the job class bumped to as the step attained in the job
class prior to the layoff." This is the language that would apply and therefore since you are
not serving a probationary period and since 9.01(D) is controlling, Article 4.05(c) does not
apply. You were placed at the same step of the Staff Assistant salary range that you
attained as a Community Development Technician which is the top step of the Staff
Assistant.

In denying the grievance, the Mayor stated, inter alia,

. . .

I am convinced by past practice that with demotions which have occurred through
layoff,
we have not required new probationary periods for similar situations. By example, Jean
Dotterwick bumped from a Staff Assistant (asterisked series) to a Community
Development Clerical Assistant (non-

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asterisked series.) Dotterwick did not serve a new probationary period and did not
receive the Staff Assistant wage for any period of time while working as a Community
Development Clerical Assistant. The treatment of Dotterwick was based upon the Human
Resources Department's determination that no new probationary period was needed. No
grievance was filed on this action. Angela Harker in her layoff bumped to a Clerk position
(in the General Clerical Series) from a Community Development Clerical Assistant in the
Rehabilitation series (non asterisked). Harker was not required to serve a new probation
period and did not receive the Community Development Clerical Assistant wage while
working as a Clerk. This was based upon the Human Resources Department's
determination that no new probationary period was required. No grievance was filed.

. . .

Subsequently, the grievance was submitted to arbitration.

POSITIONS OF THE PARTIES

Union

The City violated the clear contract language of Article 9.01(E) by not placing the
Grievant on the
required ninety working day probationary period when she started working as a Staff
Assistant. The City
also violated the clear contract language of Article 4.05(C) by not paying the Grievant at her
Community
Development Technician rate of pay while she served the required probationary period.

The asterisks noted in Appendix B carve out exceptions during layoffs as to specific
positions
where a probationary period does not need to be served. A review of Appendix B
establishes that an
employee moving from the position of Community Development Technician to Staff Assistant
is not
exempted from serving a ninety day probation period.

The Union has never agreed that the placement of asterisks in Appendix B were in
error. The
parties have had ample opportunity to correct the alleged error because it existed in several
preceding
contracts.

The City's contractual management rights are curtailed by the clear contract language.
The City's
policies are superseded by the labor agreement. Neither the career lattice charts constructed
by the City
or the materials related to the Comparable Worth and Reclassification grievance from ten
years ago, are
relevant to the enforcement of the parties' collective bargaining agreement.

Layoffs have only happened in 2003 and 2004, during the duration of the current
agreement. Thus,
there is no past practice. The examples recited by Human Resources Director Andresen
were not known
to the Local leadership.

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The City has violated the parties' collective bargaining agreement. The Grievant has
served
successfully in her Staff Assistant position for well over ninety days. Accordingly, the
appropriate remedy
is to make the Grievant whole for all wages and benefits lost due to the City's failure to
place the Grievant
on the contractually required ninety day probationary period.

City

During her tenure with the City, the Grievant has been employed as Clerk,
Clerk-Steno, Elections
Coordinator, Community Development Technician and Staff Assistant. The Grievant
successfully
completed probationary periods in the Clerk, Clerk-Steno and Community Development
Technician
positions.

The Grievant served a probationary period when she bumped into the Community
Development
Technician position to demonstrate that she could perform the higher level financial tasks not
performed
in her previous positions. When the Grievant sought to bump into the Staff Assistant
position, Human
Resources Director Andresen reviewed the Grievant's qualifications and work history and
determined that
a probationary period would not be required. The Grievant has met or exceeded all of the
knowledge,
abilities and requirements of her Staff Assistant position, as shown by her position
description.

Under the language of the contract, the City has the right to determine whether or not
a
probationary period was required when the Grievant bumped into the Staff Assistant position.
Prior
arbitration awards have upheld the City's right to determine qualifications for a position.
The Union has
failed to demonstrate that the Grievant lacked qualifications for the Staff Assistant position,
such that a
probationary period would be justified.

As a result of meetings between Union leadership and Human Resources, the Union
was made
aware of the layoffs and bumping that occurred in 2003. At no time did the Union question
qualifications,
probationary period requirements or wage rates for employees that bumped.

The City has not violated the collective bargaining agreement. The grievance should
be denied.

DISCUSSION

The instant dispute arose when the Grievant was laid off from her position of
Community
Development Technician and bumped into a position of Staff Assistant. The Union,
contrary to the City,
asserts that the City violated the parties' collective bargaining agreement by not requiring the
Grievant to
serve a ninety (90) working day probationary period in the Staff Assistant position and by not
paying the
Grievant at her Community Development Technician rate of pay while she served this
probationary period.

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This dispute arose as a result of a layoff. Article 9 of the parties' labor contract
specifically
addresses "Layoffs and Rehiring." Specific contract language governs general contract
language. Thus,
to resolve this dispute, the undersigned must first turn to the language of Article 9.

The introductory paragraph of Article 9.01 concludes with the statement: "The
following procedure
shall be utilized:" The word "shall" is directory. Under the language of Article 9.01,
management does
not have discretion to disregard any of the "following procedure," unless such discretion is
expressly
reserved to management by provisions of Article 9.

The "following procedure" includes:

(E) Employees who move to a position which is not the same
job class they hold or not a lower level
job class in the series as referenced in Appendix A of this working agreement of their current
position
where they have completed a probationary period will serve a 90 working day probationary
period.

Appendix A establishes the wage schedule for each Job Code/Classification Title, but
does not
reference "series." Appendix B sets forth classifications by series and contains the following
language:

**In the event of a layoff incumbents of these classes bumping to the General Clerical
Series are not required to serve a new probationary period."

Upon review of the contract language agreed upon by the parties, the undersigned is
persuaded that the
reference to Appendix A in Article 9.01(E) is a typographical error and that the correct
reference is
Appendix B.

In the present case, the Grievant moved from the classification of Community
Development
Technician to the classification of Staff Assistant. Accordingly, the Grievant moved to a
position which is
not the same job class that she held.

As set forth in Appendix B, the classification of Community Development Technician
is within the
Rehabilitation Series, as are two other classifications, i.e., Community
Development Clerical Assistant and
Community Development Specialist. The classification of Staff Assistant is within the
Secretarial Series,
as is one other classification, i.e., Administrative Assistant (Confidential).

During her tenure with the City, the Grievant has held a number of positions. It is
not evident that
she held any classification in the Rehabilitation Series other than Community Development
Technician. By
moving from Community Development Technician to Staff Assistant, the Grievant did not
move into a lower
level job class in the series of her current position where she had completed a probationary
period.

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The City argues that there are errors in Appendix B asterisking. This argument
cannot be sustained
on the basis of the record presented at hearing. Applying the existing language of Appendix
B, movement
from Community Development Technician to Staff Assistant is not movement that is
exempted from the
probationary period under Appendix B.

In summary, the Grievant moved to a position which is not the same job class she
held and which
was not a lower-level job class in the series as referenced in Appendix B of the Working
Agreement of her
current position where she had completed a probationary period. Article 9.01(E), states that,
under such
conditions, the Grievant "will serve" a 90 working day probationary period. The word
"will," like the word
"shall," is directory. Under the language of Article 9.01(E), the Grievant is required
to serve a 90 working
day probationary period.

The parties have offered no bargaining history with respect to the establishment of
their contract
language. It is not evident that, prior to the 2003-05 contract, there were any layoffs that
were subject to
the provisions of Article 9. Accordingly, as the Union argues, there is no relevant past
practice. As the
Union also argues, the City's general management rights, as well as the City's unilateral
policies, are subject
to curtailment by the language of the parties' collective bargaining agreement.

It is not clear that the Union was provided with sufficient information to determine
whether or not
Dotterwick and Harker were required to serve the contractually required probationary period.
Thus,
assuming arguendo that, in the Dotterwick and Harker situations relied upon
by the City, the language of
Article 9 would have required these employees to serve a 90 working day probationary
period, such a fact
would not establish that the parties had a mutual understanding that management has
discretion to waive
the probationary period requirement. It would, however, indicate that the City was not
seeking to provide
the Grievant with more favorable treatment.

In summary, under the language of Article 9 of the parties' 2003-05 labor contract,
when the
Grievant was laid off from her position of Community Development Technician and bumped
into the
position of Staff Assistant, the Grievant was required to serve a 90 working day probationary
period in the
Staff Assistant position. Inasmuch as the language of Article 9 does not expressly provide
management
with discretion to waive this requirement, the City violated the parties' collective bargaining
agreement when
it did not require the Grievant to serve a 90 working day probationary period in the Staff
Assistant position.

The undersigned turns to the question of whether or not the City violated the parties'
collective
bargaining agreement by not paying the Grievant at her Community Development Technician
rate of pay
during the 90 working days in which she should have been required to serve probation. As
discussed
above, under the language of Article 9.01, "the following procedures shall be utilized." One
of these
"following procedures" is Article 9.01(D), which states:

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D) The salary for the employee
exercising bumping rights will be that of the same salary
step of the salary range for the job class bumped to as the step attained in the job class
prior to layoff.

The Grievant received her Staff Assistant position by exercising bumping rights.
Given the
specificity of the Article 9.01(D) language, as well as the Article 9.01 mandate that the
"following
procedures shall be utilized," the Grievant's Staff Assistant position pay rate is established by
Article
9.01(D) and not, as the Union argues, by Article 4.05(C). The City did not violate the
parties' collective
bargaining agreement by not paying the Grievant at her Community Development Technician
wage rate
during the 90 working days that should have served as her probationary period.

Based on the above and foregoing, the record as a whole, the undersigned issues the
following

AWARD

1. The City violated the parties' collective bargaining agreement by not requiring
Krista
Anderson to serve a ninety (90) working day probationary period when she bumped from her
Community
Development Technician position into the Staff Assistant position.

2. The City did not violate the parties' collective bargaining agreement by not
paying Krista
Anderson at her Community Development Technician rate of pay during the time in which
she should have
served a ninety (90) working day probationary period in her Staff Assistant position.

3. Inasmuch as Krista Anderson has successfully served in the Staff Assistant
position for more
than ninety days, Krista Anderson is not obligated to serve any additional probationary period
in her
position of Staff Assistant in the Planning Department.